Bruhl on Variable Deference to Agency Interpretations

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case – Chevron, Skidmore, or something else – all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes instead that deference doctrine should take into account the varying institutional circumstances and competencies of courts at different positions in the judicial hierarchy. More specifically, lower courts should be more deferential to agencies than should higher courts. The argument divides into two parts. Part I, which presents the theoretical case, lays out a series of common rationales for judicial deference and explains how those rationales actually support a regime of hierarchically variable deference. Part II then turns to questions of institutional implementation. As it turns out, our system already manifests a few features of hierarchically variable deference, though it does not do so openly. Thus, this Article helps to explain and justify some current practices. Prescriptively, Part II suggests a number of ways in which the judicial system could more systematically implement a regime of hierarchically variable review, while also acknowledging some impediments and countervailing considerations. One possibility is that different courts should employ somewhat different doctrinal standards, but hierarchical variation can also manifest itself through non-doctrinal means, such as through decisions about how to allocate jurisdiction.